NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          ___________

          No. 06-3501
         _____________

  UNITED STATES OF AMERICA

                v.

       ALEX MELENDEZ
        a/k/a King A.M.

           Alex Melendez,

                Appellant

         ____________

          No. 06-3614
         _____________

  UNITED STATES OF AMERICA

                v.

        WILLIAM SOSA
       a/k/a King Homicide

          William Sosa,

              Appellant

         _____________

          No. 06-3667
         _____________

  UNITED STATES OF AMERICA
              v.

     ANGEL AVILES
     a/k/a Len Vando
     a/k/a King Cano


       Angel Aviles,

            Appellant


      _____________

       No. 06-3668
      _____________

UNITED STATES OF AMERICA

              v.

       ELVIS ORTIZ
      a/k/a King Elvis


        Elvis Ortiz,

           Appellant


      _____________

       No. 06-4317
      _____________

UNITED STATES OF AMERICA

             v.

    ANGEL SERRANO
    a/k/a King Pleasure
      Angel Serrano,

            Appellant


      _____________

       No. 07-1370
      _____________

UNITED STATES OF AMERICA


             v.

    ROBERTO ROSADO,

             Appellant


      _____________

       No. 07-1889
      _____________

UNITED STATES OF AMERICA

             v.

    EDWIN IRIZARRY
    a/k/a King Penguin

      Edwin Irizarry,

           Appellant


      _____________

       No. 07-3651
      _____________
                           UNITED STATES OF AMERICA

                                            v.

                                 OSCAR BERMUDEZ
                                  a/k/a King Fat Joe


                                    Oscar Bermudez,

                                       Appellant
                      ____________________________________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
    (D.C. Crim. Nos. 05-cr-00044-1, 05-cr-00044-4, 05-cr-00044-7, 05-cr-00044-8,
          05-cr-00044-10, 05-cr-00044-12, 05-cr-00044-13, 05-cr-00044-15)
                     District Judge: Honorable Gene E.K. Pratter
                      _________________________________

                       Submitted under Third Circuit LAR 34.1(a)
                                    May 26, 2010

            Before: McKee, Chief Judge, Rendell and Garth, Circuit Judges

                             (Opinion filed: August 3, 2010)

                                      ___________

                                       OPINION
                                      ___________

McKee, Chief Circuit Judge

      Defendants were convicted of various charges arising from their participation in a

drug distribution ring. Each makes a number of arguments as set forth below. We will

affirm the judgments of conviction and sentence in each of these consolidated cases.

      Inasmuch as we write primarily for the parties, who are familiar with the facts of
this case, we need not set forth the procedural history or background.

                                I. The Defendants’ Claims

                                      A. William Sosa

       William Sosa argues that the prosecution improperly exercised some of its

peremptory strikes by striking potential jurors based on race or ethnicity in violation of

Batson v. Kentucky, 

(1986); that the district court erred in eliciting expert

opinion and hearsay testimony regarding the bad character of the Almighty Latin King

and Queen Nation (“ALKQN”); that the district court erred in not dismissing counts three

and four of the indictment, because the government constructively amended the

indictment, creating prejudicial variance between the indictment and evidence presented

at trial; that the evidence was insufficient to convict him for using or carrying a firearm in

connection with the alleged conspiracy to murder an unknown person in Trenton, New

Jersey; that there was insufficient evidence to prove that he conspired to maim Raphael

Guzman in aid of racketeering activity; that the evidence failed to prove beyond a

reasonable doubt that he carried a firearm during the alleged conspiracy to murder

Guzman; that the evidence failed to prove beyond a reasonable doubt that he conspired to

kidnap Elena Mercado in aid of racketeering, and; that the sentences imposed on him

were unreasonable.

                                     B. Edwin Irizarry

       Edwin Irizarry argues that his life sentence was substantively and procedurally



                                              2
unreasonable, as it was greater than necessary to satisfy the purposes of punishment

pursuant to 18 U.S.C. § 3553(a).

                                     C. Alex Melendez

       Alex Melendez argues that the district court erred by denying his motions to

suppress a photographic identification and for a bill of particulars, and by refusing to

grant the joint Batson motion. He also argues that he was entitled to an acquittal because

the evidence was insufficient to sustain a conviction for violations of 21 U.S.C. §§ 846

and 860, and 18 U.S.C. § 1962(d).

       Melendez also asserts that there was insufficient evidence to establish that he

committed an overt act leading to murder rather than “only an assault;” that there was

insufficient evidence to convict him of engaging “in any conduct tending to prove he

participated in a racketeering enterprise;” that the district court improperly ignored

evidence that a juror had arrived at a guilty verdict based upon compulsion and duress,

and; that the district court made unconstitutional findings during the sentencing process,

resulting in an unreasonable sentence.

                                      D. Angel Aviles

       Angel Aviles argues that the prosecutor exercised peremptory strikes of jurors in

violation of Batson.

                                       E. Elvis Ortiz

       Elvis Ortiz argues that the evidence was insufficient to sustain his conviction for



                                              3
involvement in a drug conspiracy or distribution of a controlled substance in violation of

21 U.S.C. §§ 846 and 860, or for committing violent crimes in aid of a racketeering

enterprise in violation of 18 U.S.C. § 1959(a)(1). In a related argument, he claims that

the evidence was insufficient to establish beyond a reasonable doubt that he participated

in the kidnapping of Rafael Guzman, and that the district court erred in denying his Rule

29 motion for judgment of acquittal as to charges under 18 U.S.C. §§ 1959(a)(5) and (6).

       He also argues that the evidence was insufficient to allow a jury to conclude that

he committed an overt act that would lead to murder rather than to assault; that there was

no reasonable evidence to support a finding that he committed an overt act which would

lead to maiming an individual, or that he participated in the racketeering enterprise, and;

that the district court made unconstitutional findings during the sentencing process and/or

imposed an unreasonable sentence.

                                    F. Roberto Rosado

       Roberto Rosado argues that the district court erred in denying his presentence

motion to withdraw his guilty plea because it was not voluntarily and knowingly entered

into, and that his counsel was ineffective.

                                     G. Angel Serrano

       Angel Serrano argues that the district court erred in denying his motion for

judgment of acquittal as to the charges under 18 U.S.C. §§ 1959(a)(1) and (2), and that

the district court erred in denying the joint Batson challenge. He also claims that his



                                              4
sentence was unreasonable.

                                    H. Oscar Bermudez

       Oscar Bermudez argues that the district court erred in refusing to allow him to

withdraw his guilty plea prior to sentencing.

                                       II. Discussion

   We have reviewed the arguments made by each of the defendants, as well as the

responses of the government, and we conclude that, with one exception, each of the

allegations of error is totally devoid of merit and can be dismissed without discussion.

Indeed, many of the issues raised on appeal border on frivolity. We will therefore affirm

the judgments of conviction and sentence without further discussion.

       The sole exception to this is the argument raised pursuant to Batson v. Kentucky,

(1986). Although the Batson claims are also meritless, they warrant very

brief discussion.

       We noted in Hardcastle v. Horn, 

, 255 (3d. Cir. 2004), that district

courts should undertake a three-step inquiry to determine that peremptory strikes are not

being exercised in an unconstitutional manner when confronted with a Batson challenge.

Here, the district court did not undertake the three-step inquiry that we discussed in

Hardcastle. Nevertheless, even though the district court’s response was not as

procedurally precise as it should have been, it is clear that the record supports its denial of

the joint Batson motion, as none of the defendants met their burden of establishing that



                                                5
any of the prosecutor’s peremptory challenges was motivated by race, national origin, or

considerations of ethnicity, or that the prosecutor’s proffered reasons for the strikes were

a pretext to survive the Batson.

                                      III. Conclusion

       Accordingly, we will affirm the judgments of conviction and sentence of each of

these defendants.




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